Judges： Clark, Gordon, Green, Mercur, Paxson, Sterrett, Trunkey
Filed Date： 11/2/1885
Status： Precedential
Modified Date： 10/19/2024
delivered the opinion of the court, November 2nd, 1885.
The judgment notes in this case contained a clause authorizing the inclusion of “ costs of suit and attorney’s commissions of five percent, for collection ” in the judgments to be confessed. They were dated November 26th, 1883, and were payable at one year after date with interest. On November 26th, 1884, being the date of the maturity of the notes, the defendant by leave of'the court paid into court the full amount of debt, interest and costs on all the judgments. He refused to pay any attorney’s commissions because he was ready and willing to pay the whole amount due, thus rendering unnecessary any services by an attorney in the way of collection. The learned court below allowed a commission of 2-| per cent, for the attorney, and in this there was error. To permit such a practice as this, where the defendant offers to pay all that is due at the maturity of the obligation, would be sanctioning an intolerable and unreasonable oppression. There is no occasion whatever in such a case for the service of an attorney for the purpose of collection, and it was no part of the contract in this case that any commission should be paid for the mere entering of the judgment. We said in Imler v. Imler, 13 Norris, on p. 375: “ It was never intended, nor can we permit such a clause to
The order of the court below allowing an attorney’s commission of 1125 is reversed at the cost of the plaintiff in the judgment, and it is ordered that satisfaction be entered without any further payment by the defendant.